171 Ga. 322 | Ga. | 1930
Lead Opinion
The case was previously here on a ruling on demurrer. For a full statement of the averments of the petition see 163 Ga. 399 (136 S. E. 272). Upon the return of the case to the trial court, the auditor appointed took the testimony and made report of his findings. Except in one respect only, the report of the auditor was confirmed and made the judgment of the court. The present bill of exceptions contains six assignments of error, one of which is based upon a refusal of the court to recommit the case to the auditor, the others being based upon the overruling of exceptions to the report of the auditor, and in entering final decree. The litigation involves four suits. In three of these, brought on the law side of Babun superior court, Babun Mineral & Development Company was the defendant. The fourth was an equitable action in Habersham superior court, and the persons appearing as plaintiffs in the suits at law in Babun superior court, with others, were defendants.' The three suits at law in Babun were consolidated with the suit in equity in Habersham County, and the auditor was authorized to hear and determine all issues of law and fact and to settle all questions arising on the pleadings.
Heyward had contracted to buy from Graves a tract of about 900 acres of land known as the “ Smith gold mine.” Part of the purchase-money to be paid by Heyward was secured by mortgage to Graves. The purchase-price was not paid, and possession of the land was surrendered to Graves. On October 26, 1914, after surrender of possession, Graves and Heyward joined in a lease to Bobert Frame of so much of the land as was “suitable for mining purposes.” This lease provided for the payment by Frame to Graves of a proportion of the gold and other mineral taken, until the amount of Heyward’s indebtedness to Graves should have been discharged, and that Graves should then surrender the evidences of such indebtedness. On November 14, 1917, Heyward made to J. D. Johnston and Bobert Frame a lease of “all his interest in said land (subject to the rights of said Graves) for such length of time” as Johnston and Frame should “continue to mine,” This lease re
On September 1, 1919, Georgia Railway & Power Company instituted proceedings to condemn 86.2 acres of land included within the tract covered by the leases and the deed from Heyward to Rabun Mineral & Development Co. In this proceeding there was an award by the assessors of $7500 to Heyward. This money was paid- into court. On appeal taken by Heyward in the condemnation proceeding, the jury returned a verdict for $20,000. On February 10, 1920, Heyward conveyed to Rabun Mineral & Development Co., by deed containing a general covenant warranting the title, the land covered by the leases referred to. At the same time that company made to Heyward a mortgage covering the land to secure a balance of $33,000 unpaid purchase-money, represented by promissory notes. Certain interests in these notes were assigned by Heyward to Bynum, Knight, and LeCraw.
The three suits at law all proceeded upon portions of the indebtedness of Rabun Mineral & Development Company on account of the purchase-money, the purpose of one of them being the foreclosure of the mortgage given by Rabun Mineral & Development Company to secure the purchase-money. The purpose of the suit in equity in Habersham superior court was to restrain bjr injunction further proceedings in the three suits at law, and to recover on account of the alleged breach of warranty of title the value of the 86.2- acres condemned by Georgia Power Company, also $6000 alleged to be the value to petitioner for gold-mining purposes of ten acres lying adjacent to the 86.2 acres, the working of which will be made impossible by reason of back water resulting from the flooding of the 86.2 acres. The petition alleged that the $7500 awarded by the assessors in the condemnation proceedings and which had been paid into court was removed, without the knowledge of Rabun Mineral & Development Company, by Heyward and
The auditor found that the three common-law suits should be permanently enjoined, and that all the issues therein should'be adjudicated in the equitable action in Habersham County; also that the mortgage should be foreclosed, and that Heyward, and those to whom Heyward had assigned portions of the purchase-money notes (Knight and LeCraw as a partnership, and Bynum) should have a lien upon the property for specified portions of the purchase-money, with interest, attorney’s fees, and court costs. As to Babun Mineral & Development Co. he found, that, of the
Defendants in error, Heyward and Bynum, insist (1) that condemnation of property under the power of eminent domain will not operate as a breach of covenant of general warranty; and (2) that because of having participated in the condemnation proceeding and having accepted benefits under that proceeding, that is, the sum allowed on account of expense in that litigation and the allowance of fees to its counsel, plaintiff in error is forever estopped from taking any position inconsistent therewith. The contention of plaintiff in error is that because the equitable petition in Haber-sham County alleged the value of the land for gold-mining purposes and a breach of the covenant of title, and laid its claim for damages thereon, and because the defendants below demurred generally to the petition on the ground that it did not state a cause of action at law or in equity, and because the trial court, in passing on the demurrer, made the following order: “The hearing of this demurrer coming on to be heard under orders and agreement, after argument and consideration of the same, on considering paragraphs one and two of the demurrer, said grounds are sustained
As stated, the case was formerly before this court. The question then was whether the court erred in the judgment sustaining two paragraphs of the demurrer to the petition. The court did not expressly rule on other portions of the demurrer. It would be straining the law to hold that failure of the trial judge to rule on other portions of the demurrer was tantamount to a judgment overruling those portions. It must be conceded that authorities may be cited which appear to support such a view. Whether that is true or not, the “law of the case” was not fixed by what has heretofore been adjudicated by this court, as construed by plaintiff in error. Even if a failure to expressly rule on other portions of the general demurrer to the petition is so construed as to be tantamount to a judgment overruling the demurrer, such construction does not mean that the petition sets out a cause of action for all purposes sought. It is a familiar principle that a general demurrer will not be sustained where the petition sets out a cause of action for any part of the relief sought. A proper construction of the decision of this court is that the petition set out a cause of action entiting the petitioner to enjoin the several common-law suits pending in Eabun County, and to have the counterclaims between the petitioner in the equitable suit and the several plaintiffs in the common-law suits all adjudicated in the one equitable suit filed in Habersham County. Technically speaking, the plaintiff in error in this case makes a strong argument that this court would not have reversed the judgment in respect to in
“A covenant of general warranty relates only to the title, and, as a general rule, only to the title as it existed at the time the covenant was executed.” Finn v. Lifsey, 169 Ga. 599 (150 S. E. 908). Every purchaser of land, whether under a warranty of title or otherwise, takes the same subject to the exercise of the right of eminent domain. 2 Devlin on Real Estate (3d ed.), 1728, § 923 and cit. That is the crux of this entire lengthy proceeding. The auditor held that there was a breach, but limited the recovery for such breach to the amount of money awarded in the condemnation proceedings and paid into court by the condemnors. The Rabun Mineral & Development Company, as holder of the title to the property under the warranty deed, was entitled to the full sum awarded as damages, and paid by the Georgia Railway & Power Company. Fulton County v. Amorous, 89 Ga. 614 (3) (16 S. E. 201). In this proceeding it was properly applied on the purchase-money notes which it owed the vendor. That is the final effect of the ruling of the auditor, which was approved by the trial judge. In effect it was a decree responsive to the prayer of the Rabun Mineral & Development Company, that, “in the event it shall be
Judgment affirmed.
Concurrence Opinion
concurring specially. At the former appearance of this ease (Rabun &c. Co. v. Heyward, 163 Ga. 398, supra) I dissented from the judgment of reversal. For the same reasons that then influenced me, I concur in the judgment in this case. Under the circumstances disclosed by the record, the Babun Mineral Company, after having received the benefits of the entire payment of $20,000 awarded in the condemnation of this tract of land, should be estopped. The present judgment of affirmance is based